September 29, 2007

Duke Conference: Judges Panel (Reggie Live)

by emptywheel

Gary Hengstler, Director Reynolds Center for the Courts and Media. Importance of having a judicial strategy for the media. Who makes editorial decisions now? previously, you'd give everyone access. BC of conglomeration, editorial decisions are not being made by journalists, they're being made by commercial interests. Justice is in the entertainment and media field becoming a commodity. Tools to work with the media. Protective order. If you're a journalist, they're a gag order; if you're a judge, they're a protective order. Are they doing the reverse of what they were intended to, because in the absence of having the lawyers who know about the case, you'll have the people who are speculating. To what extent is that counter-productive.

LeRoy Millette, Jr., Circuit Court, Prince William County. Presided over Bobbitt case, and John Mohammad case. One of the most important things in Mohammad trial was appointing really good lawyers. They agreed not to speak to the media. They considered the possibility that Mohammad would be tried in other jurisdictions. Incredible amount of discovery that was available--a lot of it that would not be allowed in trial. Did not put that information out for the media to have access to. Biggest problem: Malvo had confessed, that confession was suppressed in Fairfax, believe it was disgruntled law enforcement official. Main tool for a fair jury was change of venue. Gave jurors numbers, they used judges lunch room, questioned jurors to make sure they remained impartial. Want to make court room as normal as you can.

Terry Ruckriegle, Breckenridge, presided over Kobe's trial (not the poodle, but the basketball player). Information got leaked before charges were filed. Decorum order, outlining guidelines for conduct. Approximately 20% of the filings were on the part of the media responding trying to open proceedings. Court Reporter accidentally released portion of transcripts from closed hearings. Issued an order to delete and destroy those transcripts. "Of course, as you heard Lucy Dalglish say earlier, that's prior restraint, which is like poking a sleeping bear with a stick." That order worked temporarily, Colorado Supreme Court upheld in 4-3 decision. Justice Breyer issued an order. Eventually released about 90% of those transcripts. Accuser's civil attorneys launched a blitz as a result of the release, eventually withdrew from suit. Possibility of prosecutors, defense attorneys, other sources, you may have another source of information being put out to the public through the public.

Walton. I think you know him. Mention Hatfill, as well. Found out assigned Libby case shortly after arraignment, much to my dismay, there was what generally happens what happens, a press conference conducted by the Prosecutor. I though he was one of the most professional prosecutors I have dealt with. I was troubled by the press conference. I thought I should also let Libby's lawyers have their say before the press. I told them I was not going to let them try the trial in the press. I had great cast of lawyers, both from the prosecutor and defense, however other sources have things to say about the case. I knew my biggest challenge would be empaneling a fair jury from Libby's perspective. I knew I had to do the best I could that he had a fair jury, I thought reading the riot act to the lawyers to make sure they weren't going to taint the pool, however, obviously there was still a lot of media interest in this case.

> 100 requests for passes. I decided to media room that had the ability to accommodate 65 media outlets. We had close circuit feed, we also opened a second court room. I went about process of working with lawyers to come up with questions that would address concerns about fair trial. One of the issues I had was whether we'd use a written questionnaire, I'd never used it bc it disadvantages less-educated jurors. Would the press be permitted in Voir dire. I had a concern that if we had a court room full of people that they may not be as open as they otherwise would, I wanted them to tell us their views, political and otherwise.

Issued an order limiting the number of journalists who could be present. With the media room I didn't get any real challenge. Somebody in chief judges chambers to work directly with press (Shelly?), we had to filter complaints. Issued extensive order about how the proceedings were covered. Media did comply with the order. Selection process was tedious. A lot of jurors did come forward and say they didn't like the Admin, the war (I hate Dick Cheney).

One of the assets we have in DC is we have wholesome degree of skepticism about law enforcement and the government. I think people should be cautious about convicting someone. We did have a fair jury. After that the chore became very difficult. I had to constantly remind jurors not to have contact with media, partial sequestering. I had a number of interns who would screen newspapers, cut out things related to war and trial. One juror went online, she related that to one of the jurors. Other than that, we didn't have any problems.

I was dismayed at how I was portrayed in the media, attacking me because I was appointed by Republican President. Then the tide turned, I became the darling of that media segment (that's us). I developed high blood pressure.

David Sellers, Asst Director for Public Affairs. DC District. Discussing public informations officer. Trying to accommodate balance of fair press and free trial. Cameras, technology in general, seating, jurors and the verdict. Cameras settled in federal, state courts allow them with some discretion. Compares Oklahoma City Bombing and OJ, cameras have influence on tabloid market, if there are cameras in the court room, you're feeding the media beast. Cameras can be useful tool to broadcast to overflow courtroom. Technology in general. Scott Peterson trial, did not allow cameras, reporter text messaged news out, including the verdict. Seating. Seating plans are not as easy as you may think--it's hard to figure out who the media is. Walton let some bloggers into his trial. Describes the various NBC outlets--do they each get a seat. Jury, most important one. I've seen stories in the media, jurors who blog during their experience. While they're on jury duty, having ongoing blog posts about what they're doing. Verdict. When the media probably shows their worst facets. Moussaoui, in that court, a TV producer had planned, he would run out of the court room, he would signal to someone standing across the way. Marshall service caught wind of that and the person across the street was probably lucky he wasn't shot. Allow Court PIO to walk outside, to read what was the verdict. He answered no questions, but he read the verdict.

David Levi: How did you deal with the bloggers.

Walton: I didn't make that call, [Shelly did] he identified several bloggers he thought were responsible. I did occasionally look at some of the blogging at certain times, I thought the two did a very good job. (Woohoo!!) There are a lot of people who get their news through that source, I thought it appropriate, so long as we had responsible bloggers. The feed room, the media was able to hear the verdict as soon as it was rendered, one of the things I put in my order was that people in the court if they got up and left, they could not come back in.

Levi: Ruckriegle and Millette, do you have any concern about cameras in the court room, knowing that witness might end up on internet? Does that change things?

Ruckriegle: I have always allowed cameras in the court room. Age of several of the witnesses involved, also the nature of the testimony, they were going to be talking about sensitive issues. We had auxiliary media room, where they could sit in relative comfort, able to use their electronic equipment. We specifically had order in the not allowing electronic devices in court room. Concern is not so much about reporting, I do think it's fair to have access to court room. We talked earlier about entertainment aspects, rather than reporting aspects. Nancy Grace

Levi: In Mohammad, you were fortunate to have wonderful lawyers. Let's assume you did not.Assume there was a prosecutor with a publicity machine. What can a judge do?

Millette: Assign a judge to a case early on. I think we'd look to the Bar Association to be of assistance.

Levi: Judge Walton. How do you deal with that?

Walton: Chief judge who oversees GJ system, Chief Judge would have every authority to step in and take action to prosecutor running amuck.

Levi: Hengstler, when dealing with criminal justice system, are judges in position to deal with this?

Hengstler: They are in a position, but will they? How many judges want to stop proceedings or create collateral proceedings, particularly when there are shield laws to protect the reporters. If someone does violate gag order, the judge will not take initiative to say we're going to do something about this. Are the tools working?

Ruckriegle: There have been a couple of comments about courts taking responsibility for this. It's not the trial courts, who don't want to take control, it's 95% of the SCOTUS cases that say "they win." We don't have the ultimate ability to control those types of leaks.

Hengstler: Very upset about irresponsibility of press, responsible press canno tbe constitutionally mandated. We have what SCOTUS has given us.

Q&A Where were the judges in the Duke Lacrosse system. No responsibility among judges, rotation system that led to tendency to kick responsibility off to other person.

Comments

Absolutely fascinating. Let Reggie know that there were many of us that did not question him just because of who he was appointed by. He has a very extensive record as a man of truth and justice; that was always good enough for me. It is the content of the man, not the quality of his appointer that counts. Now, of course, with people like Brett Kavanaugh, and more experienced, but similarly horrible, Janice Rogers Brown, both sides of the equation are pitiful.

A question that would have been interesting to hear answers to - but where the better part of valor for most would have required staying mum - would be to ask about a sitting judge publishing the kind of very politically partisan statements and attack on US Senators as are being quoted as excerpts from Thomas biography and when it is that a judge should recuse and what should happen with respect to a judge who should, but won't.

Thanks to you EW we Did get the news and honest background info. Congratz! I tell all my clients about "the Next Hurrah" and plugs for all the professional and non professional bloggers. I have my laptop at the office and will show those that have a bad view of bloggers that Not All sites are a bunch of wierdos and that there are real discussions here.Most are amazed that what they have heard is not true. I have a rather conservative client base but most are open minded and are professionals. I also let them know about other sites FDL, and Kos, etc. and what to expect. The perception the Mainstream media has put out there about Bloggers are so wrong. At least I feel that I have in some small way helped dispel the myth people have about the need for civil discourse and "net neturality" and the wonderful friends and they can make while educating themselves about what is happening in the world. Again great post!

re: Moussaoui, in that court, a TV producer had planned, he would run out of the court room, he would signal to someone standing across the way. Marshall service caught wind of that and the person across the street was probably lucky he wasn't shot.

1. Curious on what basis would Marshalls shoot someone receiving a secret signal? 2. My impression was this kind of Paul Revere signaling is common. Is it?

More generally, agree with the invaluableness of EW and other trial bloggers' efforts.

Also, EW your "not the poodle, but the basketball player" remark made my day. 'cause funny, and 'cause evidence that the blogosphere is an alternate to celebrity-obsessed news.

I find it interesting that Reggie was troubled by Fitz's press conference. Why? Because it was a departure from norms? Because he disapproves of any prosecutor going before the press before a trial? Certainly it had to be one of the most disciplined press conferences ever - Fitz repeatedly declining to go "outside the four corners of the indictment."

Sparkles - I was somewhat perplexed by that as well. Best guess is he just doesn't think prosecutors ought to be holding pressers at all. Normally, I pretty much agree with that thought as stated on one of the other conference threads. No rule is perfect though, and I think the very restrained statement Fitzgerald made was appropriate in order to tamp down several memes that were running out of control. Quite frankly, the things he tried to clear up benefitted both the prosecution, defense and took some of the heat off of the administration and other members of it. I can't say the press conference was absolutely necessary, but I think it stayed within the facts contained in the four corners of the indictment and other already public information and prejudiced no one. I can see Walton's point here, but the other side of the coin as well. My guess is Reggie was not saying Fitz did anything wrong, just that it was not critically necessary. I can agree with that, but I think some good was served by Fitzgerals's presser. As that was about it out of him, you sure can't say Fitz was a media hound here or played out any stake in the press like Nifong and others.